United States District Court, D. Maryland
DIANE S. ROSENBERG, et al., Plaintiffs,
PAULA WEBBER, Defendant.
Richard D. Bennett United States District Judge
action arises out of a foreclosure dispute between Plaintiffs
Diane S. Rosenberg, et al. (“Plaintiffs")
and pro se Defendant Paula Webber
(“Defendant" or “Webber"). In July
2013, the Plaintiffs, "), acting as substitute trustees
for Wells Fargo Bank, N.A. (“Wells Fargo"),
initiated an action in the Circuit Court for Anne Arundel
County, Maryland to foreclose on the residential property at
1552 Penzance Way, Hanover, Maryland 21076 (the
“Property"). See Compl., ECF No. 2.
Defendant Webber, the alleged owner of the Property,
attempted to stop the foreclosure by filing a Third-Party
Complaint (ECF No. 3) in the same court, alleging, inter
alia, wrongful foreclosure, quiet title, and seeking
related injunctive relief. The Circuit Court for Anne Arundel
County ultimately dismissed Webber’s claims with
prejudice on February 25, 2014. See Order, Brown
v. Webber, Case No. 02-C-13-180217.
23, 2015, the Property was sold to Art Homes, LLC for the sum
of $233, 500.00. Notice of Sale, ECF No. 22. Webber
subsequently removed the action to this Court on October 6,
2015 pursuant to 28 U.S.C. §§ 1332, 1441, and
1446. Notice of Removal, ECF No. 1. Currently
pending is Plaintiff William Savage’s Motion to Remand
(ECF No. 27). The parties’ submissions have been
reviewed and no hearing is necessary. See Local Rule
105.6 (D. Md. 2014). For the following reasons, Plaintiff
William Savage’s Motion to Remand (ECF No. 27) is
GRANTED. In sum, Defendant’s attempt at removal suffers
from several fatal flaws, both procedural and substantive.
This action is accordingly REMANDED to the Circuit Court for
Anne Arundel County, Maryland.
2013, Plaintiffs, acting as substitute trustees for Wells
Fargo, initiated a foreclosure action in the Circuit Court
for Anne Arundel County, Maryland on Defendant Webber’s
residence at 1552 Penzance Way, Hanover, Maryland 21076 (the
“Property"). See generally Compl., ECF
No. 2. Webber, proceeding pro se, then filed a
Third-Party Complaint in an effort to halt the foreclosure.
See generally Crossclaim (Third-Party Compl.), ECF
No. 3. Webber alleges that she was issued a promissory note
securing her home mortgage to World Savings Bank in 2005.
Id. ¶ 10. World Savings Bank was successively
acquired by Wachovia Bank, and then Wells Fargo. Id.
¶¶ 11-12. Webber claims that her debt was
discharged in June 2012 when she allegedly wired electronic
funds to Wells Fargo in satisfaction of that debt.
Id. ¶¶ 15-16. The funds were allegedly
received, however they were subsequently returned defaced.
Id. Webber alleges that the mere receipt and return
of the funds was sufficient to satisfy and discharge the
debt, thus she allegedly recorded a new deed for the Property
on August 16, 2012. Id. ¶¶ 16, 19.
December 3, 2012, Plaintiffs allegedly sent a letter to Wells
Fargo, claiming an outstanding debt on Webber’s
property. Id. ¶ 20. Acting as substitute
trustees for Wells Fargo, Plaintiffs then recorded a notice
of foreclosure for the Property. Webber claims that she was
not properly served the Notice of Foreclosure, as the
documents were allegedly placed on her front step and not in
her hands. Id. ¶ 23. In her Third-Party
Complaint, she argues that Plaintiffs do not have an interest
in the Property, have no right to foreclose, and failed to
comply with the requisite foreclosure procedures. See
Circuit Court for Anne Arundel County subsequently dismissed
Webber’s Third-Party Complaint with prejudice.
See Order, Brown v. Webber, Case No.
02-C-13-180217. The Property was then sold to Art Homes, LLC
on June 23, 2015. Notice of Sale, ECF No. 22. On October 6,
2015, Webber filed the present Notice of Removal (ECF No. 1)
to remove the foreclosure action to this Court pursuant 28
U.S.C. §§ 1332, 1441, and 1446. In addition to the
claims asserted (and rejected) in her Third-Party Complaint,
Webber seeks to challenge the constitutionality of the
Maryland foreclosure process through 42 U.S.C. § 1983.
defendant in a state civil action may remove the case to
federal court only if the federal court can exercise original
jurisdiction over at least one of the asserted claims. 28
U.S.C. § 1441(a)-(c). Federal courts have original
jurisdiction over two kinds of civil actions-those which are
founded on a claim or right arising under the Constitution,
treaties or laws of the United States, and those where the
matter in controversy exceeds $75, 000 and is between
citizens of different States. U.S. Const. art. III, § 2;
28 U.S.C. §§ 1331, 1332(a) (2006). If a civil
action is not based on a question of federal law, then a
federal court may only exercise original jurisdiction based
on diversity of citizenship. The purpose of the diversity
requirement “is to provide a federal forum for
important disputes where state courts might favor, or be
perceived as favoring, home-state litigants. The presence of
parties from the same State on both sides of a case dispels
this concern, eliminating a principal reason for conferring
§ 1332 jurisdiction over any of the claims in the
action." Exxon Mobil Corp. v. Allapattah
Servs., 545 U.S. 546, 553-54 (2005). As the Supreme
Court has noted, “[i]ncomplete diversity destroys
original jurisdiction with respect to all claims."
Id. at 554.
action is removed to federal court, the plaintiff may file a
motion to remand the case to state court if jurisdiction is
defective. 28 U.S.C. § 1447(c). The party seeking
removal, and not the party seeking remand, bears the burden
of establishing jurisdiction in the federal court.
Mulcahey v. Columbia Organic Chemicals Co., Inc., 29
F.3d 148, 151 (4th Cir. 1994) (citing Wilson v. Republic
Iron & Steel Co., 257 U.S. 92 (1921)). Federal courts
are obliged to carefully scrutinize challenges to
jurisdictional authority, and must “do more than simply
point jurisdictional traffic in the direction of state
courts." 17th Street Associates, LLP v. Markel
Int’l Ins. Co. Ltd., 373 F.Supp.2d 584, 592 (E.D.
Va. 2005). The federal remand statute provides that
“[a]n order remanding a case to the State court from
which it was removed is not reviewable on appeal or otherwise
. . ." 28 U.S.C. § 1447(d). On a motion to remand,
a court must “strictly construe the removal statute and
resolve all doubts in favor of remanding the case to state
court." Richardson v. Phillip Morris, Inc., 950
F.Supp. 700, 701-02 (D.Md.1997) (citation omitted). “If
federal jurisdiction is doubtful, a remand is
necessary." Mulcahy, 29 F.3d at 151; see
also Dixon v. Coburg Dairy, Inc., 369 F.3d 811, 815-16
(4th Cir. 2004).
ostensibly removed this action on the basis of diversity
jurisdiction, 28 U.S.C. § 1332. See Notice of
Removal at 3. Yet, regardless of the ground upon which
removal is based, Webber’s attempt is untimely. In
general, a defendant must file the notice of removal of the
civil action either
within 30 days after the receipt by the defendant, through
service or otherwise, of a copy of the initial pleading . .
., or within 30 days after the service of summons upon the
defendant if such initial pleading has been filed in court
and is not required to be served on the defendant, whichever
period is shorter.
28 U.S.C. § 1446(b)(1). As the United States Court of
Appeals has clearly explained, “untimely removal is a
defect in removal procedure." Cades v. H&R Block,
Inc., 43 F.3d 869, 873 (4th Cir. 1994). That defect
“renders a case improperly removed." Link
Telecomms., Inc. v. Sapperstein, 119 F.Supp.2d 536, 542
(D. Md. 2000) (citing Huffman v. Saul Holdings Ltd.
P’ship, 194 F.3d 1072, 1076 (10th Cir. 1999).
premised on diversity jurisdiction adds an additional burden,
whereby the removing party must seek removal within one year
of the filing of the state court action. 28 U.S.C. §
1446(c)(1). This requirement is excused only when “the
district court finds that the plaintiff has acted in bad
faith in order to prevent a defendant from removing the
action." Id. A removing party’s failure
to comply is “an absolute bar to removal of cases in